Monday, 23 April 2012

Brighton Outcomes

The Brighton Declaration is finally there. It was adopted last Friday in the English seaside resort where ministers of the 47 state parties to the European Convention on Human Rights came together to discuss reforming the Court. As I predicted last week, the final text is much less invasive on the Court's prerogatives than was to be feared after seeing the initial UK Government's plans for reform. Here are some of the main points:

* It is proposed to amend the Convention to change the application deadline after exhausting domestic remedies from 6 to 4 monts (not to 2 or 3 as had also been proposed).

* On other admissibility issues, the final text much more strongly protects the Court's independent decision-making on this. The Court is called upon to do so "strictly and consistently". However, the Court will not be barred through a change of the ECHR from considering complaints which have been duly considered by national courts already. The are some admonishing sections in the text, but in the end the final say remains with the Court itself.

* On the margin of appreciation and subsidiarity: it is no longer proposed to put these in the operative part of the Convention, but rather now in the preamble: "for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention". As remarked by many people,it is very unclear what difference this would make. One might especially ask how it adds to "transparency" - the part of the Brighton text quoted here is itself not very transparent. The concept of the margin of appreciation is, as Court President Bratza remarked in Brighton, "a variable notion which is not susceptible of precise definition." Will making the concept explicit in the Convention text truly affect case-law in practice? I sincerely doubt it will. Also, how will adding the two concepts to the Preamble make them more accessible?

* the Committee of Ministers is asked to draft an optional protocol on the possibility for the Court to deliver advisory opinions to national courts on the interpretation of the Convention in the context of specific cases. A short sentence at the end of the part of the Declaration about this indicates that there are continuing doubts at least among some of the state parties about the usefulness of this "further invites the Committee of Ministers thereafter to decide whether to adopt it."

* the possibility for adding additional judges to the Court, potentially with a different term of office and/or a different function than existing judges. The Committee of Ministers will further study this possibility. Should we expect this to be mainly judges with an application sifting function, akin - one is almost afraid to mention it - to the European Commission on Human Rights, abolished in 1998 under Protocol 11 ECHR? The Brighton Declaration also proposes to replace the current age limit of judges of 70 by a provision which would require judges not to be older than 65 at the start of their mandate as a judge. This in effect raises the maximum age to 74 - a good reflection of Europe's ageing population?

* As in all plans and declarations of recent years, much emphasis is put on implementation of the Convention at the national level. In this respect it is interesting that the Declaration points to a relative new player which can be key in this regard: it calls on states to consider "the establishment, if they have not already done so, of an independent National Human Rights Institution." Also, states are encouraged to use technical assistance of other countries (in contrast to earlier versions states will not be required to make use of this, even in cases of structural violations).

Textual proposals by the Committee of Ministers for all changes should be ready at the end of 2013. A protocol 15 is in the making (and potentially 16, if the provisions on an advisory opinion opt-in will be put in a spearate protocol). Let's hope that its fate will be to spend less time in the waiting room than Protocol 14 did.

One of the main reasons for the Brighton conference (and its predecessors Interlaken and Izmir) is the caseload problem in Strasbourg. On that front the newest numbers seem to be slightly encouraging (although the problem ios not off the table for the years to come). Court President Bratza indicated in Brighton that there has been an increase of a staggering 98% in cases decided since last summer and a significant (no precise numbers mentioned there) decrease of pending applications since then. In addition the number of cases coming to Strasbourg is also lower. Bratza warned, however that these trends should not "lull us into a false sense of security, into a feeling that no further action is needed to help the Court." At Brighton, the Council of Europe's Secretary General, Jagland, called for the setting up of a fund of voluntary contributions to help the Court deal with the backlog.

As the President of the Parliamentary Assembly of the Council of Europe, Jean-Claude Mignon, argued in the Guardian newspaper last Thursday, the Court was never meant to replace natinoal systems - the real solutions for tackling both human rights problems and the Court's caseload are to be found at the national level. The speeches at Brighton of Mignon, but also of the Secretary-General of the Council of Europe and of the President of the Court, can be found here.

Franck Johannes at Le Monde took a similar view. http://abonnes.lemonde.fr/societe/article/2012/04/20/l-angleterre-echoue-a-reduire-les-pouvoirs-de-la-cour-europeenne-des-droits-de-l-homme_1688501_3224.html?xtmc=johannes_franck&xtcr=1

AFP, the French news agency, got the wrong end of the stick and hailed a move to introduce the "significant disadvantage" criterion. EFE in Spain played it save with the Clarke said, Bratza said.

And as far as I could tell from Google, there was very little or nothing in most other European countries (although a flurry of material in Turkey).